R. v. Morin

R. v. Morin
Collection
Supreme Court Judgments
Date
1992-03-26
Report
[1992] 1 SCR 771
Case number
21996
Judges
Lamer, Antonio; La Forest, Gérard V.; Sopinka, John; Gonthier, Charles Doherty; McLachlin, Beverley; Stevenson, William; Iacobucci, Frank
On appeal from
Ontario
Subjects
Constitutional law
Notes
SCC Case Information: 21996
Decision Content
R. v. Morin, [1992] 1 S.C.R. 771
Darlene Morin Appellant
v.
Her Majesty The Queen Respondent
and
The Attorney General of Canada Intervener
Indexed as: R. v. Morin
File No.: 21996.
1991: October 1; 1992: March 26.
Present: Lamer C.J. and La Forest, Sopinka, Gonthier, McLachlin, Stevenson and Iacobucci JJ.
on appeal from the court of appeal for ontario
Constitutional law ‑‑ Charter of Rights ‑‑ Trial within a reasonable time ‑‑ Delay of 14½ months between accused's arrest and trial ‑‑ Delay caused solely by limits on institutional resources ‑‑ Whether right to be tried within reasonable time infringed ‑‑ Canadian Charter of Rights and Freedoms, s. 11 (b).
On January 9, 1988 the accused was charged with impaired driving and with operating a motor vehicle while having a blood alcohol level which exceeded the legal limit. She was released from custody that same day on a promise to appear. When she appeared in Provincial Court on February 23, her counsel explicitly requested "the earliest possible trial date". The trial was set for March 28, 1989. In response to a query from counsel as to whether this was "the earliest date", the presiding justice answered a simple "yes". On her scheduled trial date the accused brought a motion to stay the proceedings pursuant to s. 24(1) of the Canadian Charter of Rights and Freedoms , arguing that the 14½-month delay in bringing her to trial infringed her right to be tried within a reasonable time under s. 11 (b) of the Charter . The motion was dismissed and the accused was convicted on the "over 80" charge. A stay was entered with respect to the impaired driving charge for unrelated reasons. On appeal, the summary conviction appeal court also stayed the "over 80" charge on the basis that the accused had not been tried within a reasonable time. The Court of Appeal allowed the Crown's appeal and restored the conviction.
Held (Lamer C.J. dissenting): The appeal should be dismissed.
Per La Forest, Sopinka, Stevenson and Iacobucci JJ.: The primary purpose of s. 11 (b) is the protection of the individual rights of accused persons: (1) the right to security of the person, (2) the right to liberty, and (3) the right to a fair trial. The right to security of the person is protected by seeking to minimize the anxiety, concern and stigma of exposure to criminal proceedings. The right to liberty is protected by seeking to minimize exposure to the restrictions on liberty which result from pre‑trial incarceration and restrictive bail conditions. The right to a fair trial is protected by attempting to ensure that proceedings take place while evidence is available and fresh.
A secondary interest of society as a whole has also been recognized by this Court. This interest is most obvious when it parallels that of the accused: society as a whole has an interest in seeing that citizens who are accused of crimes are treated humanely and fairly. There is, as well, a societal interest that is by its very nature adverse to the interests of the accused: there is a collective interest in ensuring that those who transgress the law are brought to trial and dealt with according to the law.
The general approach to a determination of whether the s. 11 (b) right has been denied is not by the application of a mathematical or administrative formula but rather by a judicial determination balancing the interests which the section is designed to protect against factors which inevitably lead to delay. The factors to be considered are: (1) the length of the delay; (2) waiver of time periods; (3) the reasons for the delay, including (a) inherent time requirements of the case, (b) actions of the accused, (c) actions of the Crown, (d) limits on institutional resources and (e) other reasons for delay; and (4) prejudice to the accused. Leaving aside the question of delay on appeal, the period to be scrutinized is the time elapsed from the date of the charge to the end of the trial.
An inquiry into unreasonable delay is triggered by an application under s. 24(1) of the Charter . While the applicant has the legal burden of establishing a Charter violation, an evidentiary burden of putting forth evidence or argument on particular factors will shift depending on the circumstances of each case. A case will only be decided by reference to the burden of proof if the court cannot come to a determinate conclusion on the facts presented to it. An inquiry into unreasonable delay should only be undertaken if the period is of sufficient length to raise an issue as to its reasonableness. A shorter period of delay will raise the issue if the applicant shows prejudice, as for example if the accused was in custody. If by agreement or conduct the accused has waived any part of this time period, the length of the period of delay will be reduced accordingly.
All offences have certain inherent time requirements which inevitably lead to delay. As well as the complexity of a case, all cases are subject to certain intake requirements and some cases must pass through a preliminary inquiry before reaching trial. The court will also need to consider whether the actions of either the accused or the Crown have led to delay. These latter two factors do not assign "blame" but simply provide a convenient mechanism by which the conduct of the parties may be examined.
In considering the explanation for delay, account must be taken of the limits of institutional resources. Institutional delay runs from the time the parties are ready for trial and continues until the system can accommodate the proceedings. The weight to be given to this factor must be assessed in light of the fact that the government has a constitutional obligation to commit sufficient resources to prevent unreasonable delay. There is a point in time after which the Court will no longer tolerate delay which results from resource limitations. An administrative guideline may be used to assess the acceptable period of time to be allotted to this factor. This guideline is neither a limitation period nor a fixed ceiling on delay. It must not be applied in mechanical fashion but must yield to other factors when required.
It is appropriate for this Court to suggest a guideline of between 8 and 10 months for institutional delay in Provincial Courts. A guideline with respect to institutional delay after committal for trial in the range of 6 to 8 months was suggested in R. v. Askov, [1990] 2 S.C.R. 1199, and is still apposite. The application of the guideline will be influenced by the presence or absence of prejudice. The greater the prejudice, the shorter the acceptable period of institutional delay. These guidelines are intended for the guidance of trial courts generally, and will no doubt require adjustment by trial courts to take into account local conditions. They will also need to be adjusted from time to time to reflect changing circumstances. The court of appeal in each province will play a supervisory role in seeking to achieve uniformity subject to the necessity of taking into account the special conditions of different regions in the province. The application of these guidelines is subject to review by this Court to ensure that the right to trial within a reasonable time is being respected.
Prejudice may be inferred from the length of the delay. The longer the delay, the more likely that such an inference will be drawn. In circumstances in which prejudice is not inferred and is not proved, the basis for the enforcement of the right is seriously undermined. The purpose of the right is to expedite trials and minimize prejudice and not to avoid trials on the merits. Action or non-action by the accused which is inconsistent with a desire for a timely trial is something that must be considered.
In this case the delay of 14½ months is sufficient to raise the issue of reasonableness. Since the parties appeared to be prepared for trial from some time in March 1988 and the trial was not held until March 1989, an institutional delay of about 12 months was involved. In the jurisdiction in which this case arose, a period in the order of 10 months would not be unreasonable for systemic delay given the rapidly changing local conditions. The accused led no evidence of prejudice and little or no prejudice is inferred from the delay as the accused appeared to be content with the pace of litigation. In view of the strain on institutional resources and the absence of any significant prejudice to the accused, the delay in this case was not unreasonable. This conclusion is reached without the necessity of relying on the burden of proof.
Per McLachlin J.: The task of a judge in deciding whether proceedings against the accused should be stayed is to balance the societal interest in seeing that persons charged with offences are brought to trial against the accused's interest in prompt adjudication. The first step is to determine whether a prima facie case for unreasonable delay has been made out. Here such matters as length of delay, waiver and the reasons for the delay fall to be considered. If the prima facie case is made out, the court must proceed to a closer consideration of the accused's right to a trial within a reasonable time, and the question of whether it outweighs the conflicting societal interest. While the interest of society in bringing those charged with criminal offences to trial is of constant importance, the interest of the accused varies with the circumstances, and is usually measured by the fourth factor ‑‑ prejudice to the accused's interests in security and a fair trial. In this case the accused was able to establish a prima facie case, but failed to show that protection of her interest in a prompt trial or the ancillary public interest in prompt justice outweighed the public interest in bringing her to trial.
Per Gonthier J.: The reasons of Sopinka J. were concurred in. As underlined by McLachlin J., the decision as to whether a stay should be granted must rest on a balancing of the prejudice suffered by the accused and the societal interest in bringing the accused to trial. In this case the prejudice to the accused which can be inferred was minimal and is outweighed by the societal interest in bringing her to trial.
Per Lamer C.J. (dissenting): The principles and guidelines set out by Sopinka J. were agreed with, except as regards proof of prejudice. The onus is on the Crown to demonstrate that the delay caused no prejudice to the accused. The onus is on the applicant to establish prejudice only when the applicant is seeking a remedy additional to a stay. In this case, while the Crown has shown that the accused's liberty and fair trial interests have not been affected, it has not even attempted to show that her security interests have not been prejudiced. This kind of prejudice has been suffered beyond the length of time that can be legitimately supported on the basis of limited institutional resources.
Cases Cited
By Sopinka J.
Considered: R. v. Askov, [1990] 2 S.C.R. 1199; referred to: R. v. Hurlbert (1988), 66 C.R. (3d) 391; R. v. Conway, [1989] 1 S.C.R. 1659; R. v. Stensrud, [1989] 2 S.C.R. 1115; R. v. Smith, [1989] 2 S.C.R. 1120; Barker v. Wingo, 407 U.S. 514 (1972); Mills v. The Queen, [1986] 1 S.C.R. 863; R. v. Rahey, [1987] 1 S.C.R. 588; R. v. Beason (1983), 36 C.R. (3d) 73; R. v. Kalanj, [1989] 1 S.C.R. 1594; Korponay v. Attorney General of Canada, [1982] 1 S.C.R. 41; Clarkson v. The Queen, [1986] 1 S.C.R. 383; R. v. Bennett (1991), 6 C.R. (4th) 22; R. v. Tremblay, [1987] 2 S.C.R. 435; R. v. Smith, [1989] 2 S.C.R. 368.
By McLachlin J.
Referred to: R. v. Conway, [1989] 1 S.C.R. 1659; R. v. Askov, [1990] 2 S.C.R. 1199.
By Lamer C.J. (dissenting)
R. v. Smith, [1989] 2 S.C.R. 1120; R. v. Askov, [1990] 2 S.C.R. 1199; Mills v. The Queen, [1986] 1 S.C.R. 863.
Statutes and Regulations Cited
Canadian Charter of Rights and Freedoms, ss. 11 (b), 24(1) .
Criminal Code, R.S.C. 1970, c. C‑34, s. 237(a), (b).
Criminal Code, R.S.C., 1985, c. C‑46, s. 253 (a), (b).
APPEAL from a judgment of the Ontario Court of Appeal (1990), 76 C.R. (3d) 37, 55 C.C.C. (3d) 209, 38 O.A.C. 298, reversing a judgment of the District Court allowing the accused's appeal from her conviction by Dodds Prov. Ct. J. Appeal dismissed, Lamer C.J. dissenting.
Alan J. Risen and Robert B. Kimball, for the appellant.
Murray D. Segal and Kenneth L. Campbell, for the respondent.
S. R. Fainstein, Q.C., and R. J. Frater, for the intervener.
//Lamer C.J.//
The following are the reasons delivered by
Lamer C.J. (dissenting) -- I have read the reasons of my colleagues, Justices Sopinka and McLachlin. With respect, I cannot agree with their disposition of this case. I would allow the appeal and restore the stay entered by Murphy Dist. Ct. J. of the summary conviction appeal court.
I agree with the principles and guidelines set out by my brother Sopinka J., except as regards proof of prejudice.
While in R. v. Smith, [1989] 2 S.C.R. 1120, we did not decide whether prejudice is conclusively presumed or to be inferred, in R. v. Askov, [1990] 2 S.C.R. 1199, the reasons of Cory J., concurred in by Dickson C.J. and La Forest, L'Heureux-Dubé and Gonthier JJ., and concurred in on this point in separate reasons by Sopinka and McLachlin JJ., placed "the onus on the Crown to demonstrate ... that the delay caused no prejudice to the accused". Indeed, at p. 1232 of his reasons, Cory J. states:
(iv)Prejudice to the Accused.
There is a general, and in the case of very long delays an often virtually irrebuttable presumption of prejudice to the accused resulting from the passage of time. Where the Crown can demonstrate that there was no prejudice to the accused flowing from a delay, then such proof may serve to excuse the delay. It is also open to the accused to call evidence to demonstrate actual prejudice to strengthen his position that he has been prejudiced as a result of the delay.
I believe that the factors that I have set out in large measure are substantially the same as those enunciated by L'Heureux-Dubé J. in Conway and Sopinka J. in Smith. The aim of this test is to provide a method based upon the underlying purposes of s. 11 (b) which will permit courts to balance the applicable substantive factors in a consistent manner. It bears repeating that the balance between the explicit, individual protection and the implicit, societal aspect of s. 11 (b) is addressed by placing the onus on the Crown to demonstrate that any action of the accused deliberately caused the delay or constituted waiver, or that the delay caused no prejudice to the accused. [Emphasis added.]
My understanding of Cory J.'s reasons is that the onus is on the applicant as regards prejudice only when the applicant is seeking a remedy additional to a stay. If any ambiguity in that regard is present (and I find none) at p. 1232 of his reasons the reasoning preceding this summary makes it amply clear. At page 1230 of his reasons, Cory J. states:
Furthermore, the option left open by Sopinka J. in the Smith case whereby accused persons who have suffered some additional form of prejudice are permitted to adduce evidence of prejudice on their own initiative in order to strengthen their position in seeking a remedy under s. 24(1) of the Charter is consistent with the primary concern of protecting the individual's right under s. 11 (b).
While I dissented as regards the approach of Cory J. on prejudice, that approach was concurred in by six other judges. My views on the issue which I have held since Mills v. The Queen, [1986] 1 S.C.R. 863, and throughout s. 11 (b) judgments in this Court, have conclusively been put to rest by Askov and I hereon in feel bound by it. Furthermore, as Askov is a very recent decision of this Court, I do not think it desirable that it be revisited in this case.
Both of my colleagues in their reasons, McLachlin J. somewhat more so than Sopinka J., place the onus on the accused to prove prejudice. This is a fundamental change to the position that this Court has taken. While I have never changed my mind as regards my dissenting position, I will, as I should, apply Askov to the facts of this case. Leaving the onus on the Crown, it has shown that Ms. Morin's liberty and fair trial interests have not been affected. But it has not even attempted to show that her security interests have not been affected; by that I mean the kind of prejudice I described in Mills, supra, at p. 920, "stigmatization of the accused, loss of privacy, stress and anxiety resulting from a multitude of factors, including possible disruption of family, social life and work, legal costs, uncertainty as to the outcome and sanction". I conclude that this kind of prejudice has been suffered beyond the length of time that can be legitimately supported on the basis of limited institutional resources.
//Sopinka J.//
The judgment of La Forest, Sopinka, Stevenson and Iacobucci JJ. was delivered by
Sopinka J. -- The issue in this appeal concerns the right of an accused to be tried within a reasonable time. This right is enshrined in s. 11 (b) of the Canadian Charter of Rights and Freedoms which states:
11. Any person charged with an offence has the right
. . .
(b) to be tried within a reasonable time;
Though beguiling in its simplicity, this language has presented the Court with one of its most difficult challenges in search of an interpretation that respects the right of the individual in an era in which the administration of justice is faced both with dwindling resources and a burgeoning caseload. We are asked in this appeal to re-examine the problem in light of the effect on the administration of justice of our decision in R. v. Askov, [1990] 2 S.C.R. 1199. Evidence presented to us indicates that between October 22, 1990 and September 6, 1991, over 47,000 charges have been stayed or withdrawn in Ontario alone. The reaction to this has been mixed. On the one hand many applaud the result which has in their view unclogged the system of much dead wood in the form of charges that should not have been laid or having been laid ought to have been dropped. This, they say, will enable the system to more quickly accommodate cases that are more pressing and lessen the period during which alleged criminals are free to roam the streets while awaiting trial. On the other hand, many others deprecate what in their opinion amounts to an amnesty for criminals, some of whom were charged with very serious crimes. They assert that accused persons are discharged when they have suffered no prejudice to the complete dismay of victims who have suffered, in some cases, tragic losses.
The Facts
The facts of this case are neither complicated nor in dispute. On January 9, 1988 the accused was observed by a police officer to be travelling at an excessive rate of speed. She was pulled over by the officer and showed signs of intoxication. As a result of visual observation and a series of co-ordination tests, the accused was charged with operating a motor vehicle while impaired, contrary to s. 237(a) of the Criminal Code, R.S.C. 1970, c. C-34 (now s. 253 (a)). The accused was then taken to the police station and given a breathalyzer test after which she was charged with operating a motor vehicle having consumed alcohol in such a quantity that her blood alcohol level exceeded the legal limit, contrary to s. 237(b) (now s. 253 (b)) of the Code.
The accused was released from custody on the day of her arrest on a promise to appear. She next appeared in Oshawa Provincial Court on February 23, 1988. Counsel for the accused explicitly requested "the earliest possible trial date" (C.O.A. at p. 15). The trial was set for March 28, 1989. In response to a query from counsel as to whether this was "the earliest date", the presiding justice answered a simple "yes" (C.O.A. at pp. 15-16).
On her scheduled trial date, March 28, 1989, counsel for the accused brought a motion to stay the proceedings pursuant to s. 24(1) of the Charter prior to entering a plea, arguing that the 14½ month delay in bringing the accused to trial infringed the accused's right under s. 11 (b) of the Charter . The motion was dismissed. The accused was then convicted of the "over 80" charge and a stay was entered in regard to the impaired driving charge. On appeal to the summary conviction appeal court, the "over 80" charge was also stayed on the basis that the accused had not been tried within a reasonable time. A further appeal to the Court of Appeal for Ontario was allowed and the conviction restored.
Judgments
A. Ontario Provincial Court
Dodds Prov. Ct. J. relied heavily on the case of R. v. Hurlbert (1988), 66 C.R. (3d) 391 (Ont. H.C.), in which an 18-month delay prior to trial was found to be reasonable. In that case, Doherty J. (as he then was) determined that while such a long delay was prima facie excessive and warranted a further examination of other factors, the totality of the circumstances did not justify a stay. Dodds Prov. Ct. J. went on to conclude that:
In this particular case the delay is 14½ months, not 18 months. There was no expression of concern by the representative of the accused when the trial date was set except to say "is that the earliest date?" there was no declaration of prejudice at that time and none has since been shown. In all of the circumstances I feel that this case falls well within the principal [sic] discussed by Mr. Justice Doherty in Hurlbert and the motion will be refused.
The accused was subsequently found guilty of the "over 80" charge and a stay was entered on the impaired driving charge. As a result, the accused was fined $700 and her driver's licence was suspended for 15 months.
B. District Court of Ontario
Murphy Dist. Ct. J. stated that he was bound by the then recently released reasons of this Court in R. v. Conway, [1989] 1 S.C.R. 1659. His Honour distinguished the Hurlbert case relied upon by the trial judge.
Murphy Dist. Ct. J. then applied the test for unreasonable delay as set out in Conway. He concluded that the major reason for the delay in this case was the lack of institutional resources. He rejected the suggestion by the Crown that the appellant was required to assert her right to a prompt trial under s. 11 (b). Murphy Dist. Ct. J. agreed that some allowance must be made for the strain on judicial resources, but indicated that "[t]his case is perhaps unusual in its lack of complicating factors". Given the lack of complexity of the case he could not accept that a delay of 14½ months was justified. Accordingly, he concluded that the appellant had not been tried within a reasonable time. The appeal was allowed and a stay of proceedings entered. Additionally, in the event that he was wrong on the conviction appeal, Murphy Dist. Ct. J. allowed the sentence appeal of the accused and reduced her licence suspension to 12 months.
C. Ontario Court of Appeal (1990), 76 C.R. (3d) 37
The Court of Appeal acknowledged that the sole source of delay in this case was attributable to limits on institutional resources. In view of this Court's statement in R. v. Stensrud, [1989] 2 S.C.R. 1115, that "[t]he provincial courts of appeal are generally in a better position than this Court to assess the reasonableness of their province's institutional limitations and resources" (at p. 1116), the court sat as a five-member panel and invited the parties to file further material bearing upon that issue. A significant amount of additional information was filed. After reviewing portions of the material, the court noted that the problem of delay was still serious, despite initiatives by the government to address the problem.
The court then proceeded to apply the four factors referred to in R. v. Smith, [1989] 2 S.C.R. 1120, against the facts of the case. The court first considered the issue of prejudice to the appellant and concluded that only minimal weight should be given to this factor. The appellant had suffered no actual prejudice (she neither testified nor called any witnesses) and any presumed prejudice from the delay was not significant. The court next considered waiver, concluding that the appellant had not waived any of the delay. In dealing with the issue of the length of the delay, the court indicated that in isolation, the length of the delay was excessive.
In considering the second factor discussed in Smith, supra, the court noted that with only police witnesses and a certificate of analysis, this was a "routine" case to prosecute. In fact, the police investigation was over on the day of the arrest. The court concludes that "inherent time requirements formed no part of the reason for the delay" (p. 46).
The Court of Appeal concluded that the sole reason for the delay was the limit upon institutional resources. The court considered the situation in the District of Durham and concluded that systemic delay was approaching a crisis level. The court added, however, that the government recognized the problem and was attempting to address it. It acknowledged that "the problems with the administration of justice were enormously complex and were not amenable to a quick fix or magic solution" (p. 49). In view of the efforts of the government to reduce delay, the court was willing to view systemic delay in a sympathetic manner.
Finally, the Court of Appeal considered the need for a transitional period to give the government time to discharge its burden of providing trials within a reasonable time. It held that such a transitional period was required and "[h]aving regard to the extent and intractability of the problem . . . the transitional period cannot be a short one" (pp. 52-53). The Court of Appeal added that the leeway to be given to systemic delay during the transitional period should be considerable when balancing the factors enunciated in Smith, supra. Any other conclusion "would be tantamount to an amnesty . . . [and] [t]hat such an amnesty is undesirable is patently obvious" (p. 55).
The court concluded that taking into consideration all of the factors set out in Smith, supra, the appellant's right to be tried within a reasonable time had not been infringed. The appeal was therefore allowed, the conviction entered at trial restored, and the sentence as "modified" by Murphy Dist. Ct. J. on appeal, affirmed.
Points in Issue
The major issue to be determined in this appeal is whether the accused's right to a trial within a reasonable time as guaranteed by s. 11 (b) of the Charter has been infringed by the delay experienced in this case. A subsidiary issue arises if the answer to the above question is in the affirmative. That subsidiary question is whether the delay can be excused as a result of the need for a transitional period to allow the government to discharge its burden of providing trials within a reasonable time.
Jurisprudential Development of s. 11 (b)
The development of the jurisprudence relating to s. 11 (b) is instructive in that it underscores the importance of avoiding rigidity in the interpretation of new constitutional rights early in the life of a constitutional document. The Court could have simply adopted the American approach articulated in Barker v. Wingo, 407 U.S. 514 (1972), which has resulted in only the most egregious delays being proscribed. Instead, in accordance with the intent of the Charter , this Court has attempted to develop a Canadian approach with due regard for the American experience. Embarking as we did on uncharted waters it is not surprising that the course we steered has required, and may require in the future, some alteration in its direction to accord with experience.
In Mills v. The Queen, [1986] 1 S.C.R. 863, R. v. Rahey, [1987] 1 S.C.R. 588, and R. v. Conway, supra, the Court developed the basic criteria for the application of s. 11 (b). Not surprisingly, the broad and general language of the section gave rise to differences of opinion as to the criteria to be applied and their content. In an effort to develop a common approach which would supply some guidance but leave trial courts and courts of appeal flexibility to take into account local conditions, this Court in Smith, supra, distilled the jurisprudence in Mills, Rahey and Conway into four basic criteria to be applied in determining whether delay was unreasonable. In the week preceding release of the reasons in Smith, we heard the appeal in Stensrud, supra, in which we were invited to reverse a decision of the Court of Appeal of Saskatchewan reversing the trial judge who had refused a stay. On the basis of evidence before it, the Court of Appeal found the delay to be unreasonable. Mindful of the fact that Smith was about to be released, we declined to embark on another examination of the principles underlying s. 11 (b). We were satisfied that the Court of Appeal had correctly assessed the effect of limitations on institutional resources. In this regard we stated, at (p. 1116) that:
The provincial courts of appeal are generally in a better position than this Court to assess the reasonableness of their province's institutional limitations and resources.
Finally, in Askov, we dealt with a case which came to us from the Court of Appeal for Ontario and originated in Brampton, Ontario, a notorious sore spot in relation to unreasonable delay. Applying the basic criteria in Smith, the Court was unanimous that the delay was unreasonable. The Court went on to suggest that "a period of delay in a range of some six to eight months between committal and trial might be deemed to be the outside limit of what is reasonable" (p. 1240). It is the interpretation and application of this statement that resulted in the large number of stays and withdrawals to which I have referred.
This appeal came before the Court of Appeal for Ontario after the release of our judgments in Smith and Stensrud but before Askov. I have already indicated that the court invited the parties to provide additional evidence with respect to the situation in the District of Durham relating to institutional limitations and resources. It was in this jurisprudential and evidentiary setting that the Court of Appeal reached its decision.
The Purpose of s. 11 (b)
The primary purpose of s. 11 (b) is the protection of the individual rights of accused. A secondary interest of society as a whole has, however, been recognized by this Court. I will address each of these interests and their inter-action.
The individual rights which the section seeks to protect are: (1) the right to security of the person, (2) the right to liberty, and (3) the right to a fair trial.
The right to security of the person is protected in s. 11 (b) by seeking to minimize the anxiety, concern and stigma of exposure to criminal proceedings. The right to liberty is protected by seeking to minimize exposure to the restrictions on liberty which result from pre-trial incarceration and restrictive bail conditions. The right to a fair trial is protected by attempting to ensure that proceedings take place while evidence is available and fresh.
The secondary societal interest is most obvious when it parallels that of the accused. Society as a whole has an interest in seeing that the least fortunate of its citizens who are accused of crimes are treated humanely and fairly. In this respect trials held promptly enjoy the confidence of the public. As observed by Martin J.A. in R. v. Beason (1983), 36 C.R. (3d) 73 (Ont. C.A.): "Trials held within a reasonable time have an intrinsic value. The constitutional guarantee enures to the benefit of society as a whole and, indeed, to the ultimate benefit of the accused ..." (p. 96). In some cases, however, the accused has no interest in an early trial and society's interest will not parallel that of the accused.
There is, as well, a societal interest that is by its very nature adverse to the interests of the accused. In Conway, a majority of this Court recognized that the interests of the accused must be balanced by the interests of society in law enforcement. This theme was picked up in Askov in the reasons of Cory J. who referred to "a collective interest in ensuring that those who transgress the law are brought to trial and dealt with according to the law" (pp. 1219-20). As the seriousness of the offence increases so does the societal demand that the accused be brought to trial. The role of this interest is most evident and its influence most apparent when it is sought to absolve persons accused of serious crimes simply to clean up the docket.
The Approach to Unreasonable Delay - The Factors.
The general approach to a determination as to whether the right has been denied is not by the application of a mathematical or administrative formula but rather by a judicial determination balancing the interests which the section is designed to protect against factors which either inevitably lead to delay or are otherwise the cause of delay. As I noted in Smith, supra, "[i]t is axiomatic that some delay is inevitable. The question is, at what point does the delay become unreasonable?" (p. 1131). While the Court has at times indicated otherwise, it is now accepted that the factors to be considered in analyzing how long is too long may be listed as follows:
1. the length of the delay;
2. waiver of time periods;
3. the reasons for the delay, including
(a) inherent time requirements of the case,
(b) actions of the accused,
(c) actions of the Crown,
(d) limits on institutional resources, and
(e) other reasons for delay; and
4. prejudice to the accused.
These factors are substantially the same as those discussed by this Court in Smith, supra, at p. 1131, and in Askov, supra, at pp. 1231-32.
The judicial process referred to as "balancing" requires an examination of the length of the delay and its evaluation in light of the other factors. A judicial determination is then made as to whether the period of delay is unreasonable. In coming to this conclusion, account must be taken of the interests which s. 11 (b) is designed to protect. Leaving aside the question of delay on appeal, the period to be scrutinized is the time elapsed from the date of the charge to the end of the trial. See R. v. Kalanj, [1989] 1 S.C.R. 1594. The length of this period may be shortened by subtracting periods of delay that have been waived. It must then be determined whether this period is unreasonable having regard to the interests s. 11 (b) seeks to protect, the explanation for the delay and the prejudice to the accused.
The role of the burden of proof in this balancing process was set out in the unanimous judgment of this Court in Smith, supra, at pp. 1132-33, as follows:
I accept that the accused has the ultimate or legal burden of proof throughout. A case will only be decided by reference to the burden of proof if the court cannot come to a determinate conclusion on the facts presented to it. Although the accused may have the ultimate or legal burden, a secondary or evidentiary burden of putting forth evidence or argument may shift depending on the circumstances of each case. For example, a long period of delay occasioned by a request of the Crown for an adjournment would ordinarily call for an explanation from the Crown as to the necessity for the adjournment. In the absence of such an explanation, the court would be entitled to infer that the delay is unjustified. It would be appropriate to speak of the Crown having a secondary or evidentiary burden under these circumstances. In all cases, the court should be mindful that it is seldom necessary or desirable to decide this question on the basis of burden of proof and that it is preferable to evaluate the reasonableness of the overall lapse of time having regard to the factors referred to above.
I do not read the Askov decision as having departed from this statement although portions of the reasons of Cory J. emphasized certain aspects of the evidentiary burden on the Crown.
A definition of each of these factors and their interaction follows. I will deal with them in the order that they should be considered by a trial court.
1. The Length of the Delay
As I have indicated, this factor requires the court to examine the period from the charge to the end of the trial. Charge means the date on which an information is sworn or an indictment is preferred (see Kalanj, supra, at p. 1607). Pre-charge delay may in certain circumstances have an influence on the overall determination as to whether post-charge delay is unreasonable but of itself it is not counted in determining the length of the delay.
An inquiry into unreasonable delay is triggered by an application under s. 24(1) of the Charter . The applicant has the legal burden of establishing a Charter violation. The inquiry, which can be complex (as may be illustrated by the proceedings in the Court of Appeal in this case), should only be undertaken if the period is of sufficient length to raise an issue as to its reasonableness. If the length of the delay is unexceptional, no inquiry is warranted and no explanation for the delay is called for unless the applicant is able to raise the issue of reasonableness of the period by reference to other factors such as prejudice. If, for example, the applicant is in custody, a shorter period of delay will raise the issue.
2. Waiver of Time Periods
If the length of the delay warrants an inquiry into the reasons for delay, it appears logical to deal with any allegation of waiver before embarking on the more detailed examination of the reasons for delay. If by agreement or other conduct the accused has waived in whole or in part his or her rights to complain of delay then this will either dispose of the matter or allow the period waived to be deducted.
This Court has clearly stated that in order for an accused to waive his or her rights under s. 11 (b), such waiver must be clear and unequivocal, with full knowledge of the rights the procedure was enacted to protect and of the effect that waiver will have on those rights (Korponay v. Attorney General of Canada, [1982] 1 S.C.R. 41, at p. 49; see also Clarkson v. The Queen, [1986] 1 S.C.R. 383, at pp. 394-96; Askov, supra, at pp. 1228-29). Waiver can be explicit or implicit. If the waiver is said to be implicit, the conduct of the accused must comply with the stringent test for waiver set out above. As Cory J. described it in Askov, supra, at p. 1228:
... there must be something in the conduct of the accused that is sufficient to give rise to an inference that the accused has understood that he or she had a s. 11 (b) guarantee, understood its nature and has waived the right provided by that guarantee.
Waiver requires advertence to the act of release rather than mere inadvertence. If the mind of the accused or his or her counsel is not turned to the issue of waiver and is not aware of what his or her conduct signifies, then this conduct does not constitute waiver. Such conduct may be taken into account under the factor "actions of the accused" but it is not waiver. As I stated in Smith, supra, which was adopted in Askov, supra, consent to a trial date can give rise to an inference of waiver. This will not be so if consent to a date amounts to mere acquiescence in the inevitable.
In R. v. Bennett (1991), 6 C.R. (4th) 22 (Ont. C.A.), Arbour J.A. alluded to the problem that arises in applying the principles of waiver in respect of accused who agreed to trial dates prior to the release of the Askov decision. Presumably the accused could contend that in agreeing to dates they were not fully aware of their rights. No doubt this is a factor that must be considered by the court hearing the application and it is not appropriate for this